February 7, 2018


Dissecting the Grassley-Graham Letter's Criticisms of the Carter Page FISA Application (Ryan Goodman, February 7, 2018, JustSecurity)

There are three ways in which the Grassley-Graham letter goes even further than the Nunes memo in its criticisms of the FBI's handling of the FISA application.

First, the letter states that the FISA application did not include any "meaningful corroboration" of the Steele dossier allegations against Page, and that Comey's response to the criticism in closed session was not to refer to other forms of corroboration, but instead to depend on Steele's general reliability. It is hard to know how to evaluate the two senators' claim of lack of "meaningful" corroboration, since there may have been ample other evidence about Page's recent relationships with Russian agents. By late October 2016, when the FISA application was submitted, Page's unusual trip to Russia while a member of the Trump campaign was well known. The Nunes memo itself seems to suggest that around this time, the Steele dossier was at least "minimally corroborated." And, in response to the release of the Nunes memo, Rep. Adam Schiff (D-Calif.)stated, "Only very select parts of what Christopher Steele reported related to Carter Page were included within the application, and some of those things were already subject to corroboration."

What's more, Page's own testimony to the House Intelligence Committee, which occurred two months before the senators' letter, corroborated parts of the Steele' dossier. For more on this, read Natasha Bertrand's "Carter Page's testimony is filled with bombshells--and supports key portions of the Steele dossier." Since Grassley and Graham's ultimate claim involves concerns about Steele's credibility, one would have expected them at least to address the subsequent corroboration by Page, even if not other aspects of the dossier that may have also been validated (see John Sipher's two articles at Just Security). That said, the FBI may have been unaware of some of the corroborating details about Page in late October when DOJ applied to the FISA court.

The Grassley-Graham memo also includes an important line that the FBI itself came to the determination that "[Steele's] reporting is credible." We should all remember that is now a part of the public record. Grassley and Graham attempt to tar the entire Steele dossier with the suggested that James Comey told Congress the dossier is "salacious and unverified." That is the same foul committed by the Nunes memo, and smacks of bias. Here's the Pulitzer Prize-winning PolitiFacts ruling:

"Comey's careful phrasings in four portions of his testimony indicate that he meant only that portions of it were "salacious and unverified." The memo twists Comey's words in an effort to leverage his stature to undercut the dossier."

Second, the Grassley-Graham letter states that "the bulk of the application consists of allegations against Page that were disclosed to the FBI by Mr. Steele and are also outlined in the Steele dossier. The application appears to contain no additional information corroborating the dossier allegations..." Note that the second sentence does not say the dossier failed to contain additional information that implicated Page, only that it did not contain additional information corroborating the specific allegations in the Steele dossier. Nevertheless, it is important that the senators claim that the Steele dossier and other information that Steele provided the FBI constituted "the bulk of information" in the original application (elsewhere they describe the Steele information as "a significant portion" of the FISA application).

But what about that forest? What's publicly known about Page suggests there may have been ample reason for the Justice Department to seek a surveillance warrant and for federal judges to authorize and reauthorize it. Nothing in the letter changes that fact. Indeed, not even Gowdy is now willing to say that the initial FISA order was unjustified.

Gowdy--sig. drafter of #NunesMemo--now can't even say surveillance was unjustified.

Q: "Was that justified, that surveillance?

Gowdy: "We'll never know because the application contained three parts" including "other information they had on Carter Page" pic.twitter.com/p1to43kpKP

-- Ryan Goodman (@rgoodlaw) February 4, 2018

That's an especially important sign since Gowdy says he was "intricately involved" in  drafting the Nunes memo and Nunes gave Gowdy the exclusive responsibility of viewing the underlying classified information on behalf of the Republican members of the House Intelligence Committee. Why could Gowdy not say the surveillance warrant was unjustified? Because of "other information they had on Carter Page," Gowdy told CBS's Face the Nation. The senators' letter itself is also inconsistent in this regard. Having said the Steele dossier constituted "the bulk of information" in the original application, the letter refers elsewhere to "a total of four FISA applications relying on the dossier to seek surveillance of Mr. Carter Page, as well as numerous other FBI documents relating to Mr. Steele."

Posted by at February 7, 2018 5:32 PM